• A Loss of Earning Capacity Claim Must Be Established By the Evidence With Reasonable Certainty. The Plaintiff’s Opinion Alone as to His or Her Loss of Earning Capacity is Insufficient to Carry Such a Burden.
  • October 9, 2017
  • When bringing a loss of earning capacity claim, the burden is on the plaintiff to establish, with reasonable certainty, that the capacity to labor has been diminished and to provide a monetary standard to which a jury can measure future loss. While it is not necessary for the plaintiff to have suffered a permanent injury to recover for loss of earning capacity, it is a significant factor. Other factors include the plaintiff’s age, health, habits, occupation, surroundings, and earnings before and after the injury.

    The Fifth District Court of Appeals, in determining the trial court’s decision to deny the defendant’s motion for remittitur or new trial was in plain error, suggested that the plaintiff’s testimony regarding the possibility he could not return to work as a plumber if he lost his job was speculative and irrelevant. The court stated that this type of testimony fails to demonstrate that the plaintiff is either completely disabled from further gainful employment or unable to work to the same age he would otherwise had been able to but for the accident. This decision is consistent with prior appellate decisions that support the proposition that a plaintiff’s subjective opinion testimony as to his inability to work in the future or to work at reduced wages as a result of the accident alone is insufficient to support a loss of earning capacity claim.

    As a result, a claims professional should focus on the objective evidence that supports the claim, such as a treating doctor’s prescription restricting certain types of work in the future or an employer’s statement that the plaintiff could no longer perform his or her job duties as required, resulting in a demotion or pay cut, when evaluating a loss of earning capacity claim.